[Senate Hearing 111-529]
[From the U.S. Government Publishing Office]
S. Hrg. 111-529
ADVANCING FREEDOM OF INFORMATION IN THE NEW ERA OF RESPONSIBILITY
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HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 30, 2009
__________
Serial No. J-111-50
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Matt Miner, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, John, a U.S. Senator from the State of Texas............. 3
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 56
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 65
WITNESSES
Curley, Tom, President and Chief Executive Officer, The
Associated Press, Representing the Sunshine in Government
Initiative, New York, New York................................. 14
Fuchs, Meredith, General Counsel, The National Security Archive,
Washington, DC................................................. 16
Nisbet, Miriam, Director, Office of Government Information
Services, National Archives and Records Administration, College
Park, Maryland................................................. 6
Perrelli, Thomas J., Associate Attorney General, U.S. Department
of Justice, Washington, DC..................................... 4
QUESTIONS AND ANSWERS
Responses of Thomas J. Perrelli to questions submitted by Senator
Leahy.......................................................... 22
SUBMISSIONS FOR THE RECORD
Associated Press, Laurie Kellman, Washington, DC, article........ 24
Burton, M. Faith, Acting Assistant Attorney General, Washington,
DC, letter and attachment...................................... 26
Curley, Tom, President and Chief Executive Officer, The
Associated Press, Representing the Sunshine in Government
Initiative, New York, New York, statement...................... 32
Fuchs, Meredith, General Counsel, The National Security Archive,
Washington, DC, statement...................................... 58
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
letter......................................................... 67
Nisbet, Miriam, Director, Office of Government Information
Services, National Archives and Records Administration, College
Park, Maryland, statement...................................... 69
OpenTheGovernment.org; Organizations and Individuals, Washington,
DC, letter..................................................... 71
Perrelli, Thomas J., Associate Attorney General, U.S. Department
of Justice, Washington, DC, statement.......................... 75
ADVANCING FREEDOM OF INFORMATION IN THE NEW ERA OF RESPONSIBILITY
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WEDNESDAY, SEPTEMBER 30, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:06 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Whitehouse, Klobuchar, Franken,
and Cornyn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. I was just explaining to Senator Cornyn,
who has been such a champion in this area, the reason why I am
late. Over in the Russell Building, they were changing the
Chair of the Senate Agriculture Committee. For the first time,
there will be a woman as Chair of the Committee, Blanche
Lincoln of Arkansas, and the first time an Arkansan will be
Chair. But it is a Committee which thrives on bipartisanship,
and all the former Chairs of that Committee who are currently
serving in the Senate were there--that is, Senator Saxby
Chambliss of Georgia, Senator Dick Lugar of Indiana, Senator
Thad Cochran of Mississippi, all Republicans; and Senator Tom
Harkin and myself, Tom Harkin of Iowa and myself. So we had six
people there, one Chair, five former Chairs, and we have all--
to show you how the majority goes back and forth here, all five
of us have been former Chairs and former Ranking Minority
members. So it is one of those things that they keep track of.
I suspect it is somewhat of an oddity in the Senate and
somewhat historical.
But more importantly for this Committee, we are holding an
important oversight hearing on the Freedom of Information Act,
or ``FOIA,'' as we all know it. FOIA was enacted 42 years ago.
It was enacted 7 years before I came to the Senate. It was a
watershed moment in our Nation's history because it guarantees
the right of all Americans to obtain information from their
Government and to know what their Government is doing.
Remember, it is our Government, all of us.
In his historic Presidential memorandum on FOIA, President
Obama said that ``[i]n our democracy, the Freedom of
Information Act, which encourages accountability through
transparency, is the most prominent expression of a profound
national commitment to ensuring an open Government. At the
heart of that commitment is the idea that accountability is in
the interest of the Government and the citizenry alike.''
I know from the start of his transition to the White House,
I urged him to make a clear commitment to FOIA, and I told him
I was very pleased that one of his first official acts was to
issue the new directive to strengthen FOIA. But I would also
note that he supported every time Senator Cornyn and I made
moves to strengthen FOIA, he as a Senator had backed that.
FOIA is an indispensable tool in protecting the people's
right to know. It is a cornerstone of our democracy. If you do
not have it, you are kept in the dark about key policy
decisions. The Government will always tell us look at the great
thing we did right. FOIA kind of helps find out those things we
do not want to talk about that we did wrong. And without open
Government, you cannot make informed choices at the ballot box.
Without access to public documents and a vibrant free press
using those, officials can make decisions in the shadows, often
in collusion with special interests, escaping accountability
for their actions. And once eroded, the right to know is hard
to win back.
It is essential that we honor the President's promise to
restore more openness and accountability to Government. I have
called on the Justice Department to conduct a comprehensive
review of its pending FOIA cases so that information sought
under FOIA is not improperly withheld from the public. In
March, the Attorney General issued new FOIA guidance that
restores the presumption of disclosure for Government
information. I welcome that new policy, and I am pleased that
the Associate Attorney General is here to discuss how the FOIA
guidelines are being implemented. Mr. Perrelli, I am delighted
you are here.
We have made good progress toward strengthening FOIA in
Congress. Earlier this year, the Congress enacted an omnibus
spending bill that includes critical funding to finally
establish the Office of Government Information Services at the
National Archives and Records Administration as part of the
OPEN Government Act, which Senator Cornyn and I wrote.
Incidentally, speaking of that, both of us realize the
temptation to withhold things can afflict both Democratic and
Republican administrations. We were trying to write this so no
matter who is President, no matter which party is in control,
that the temptation can be resisted because FOIA is strong. And
so we are going to--there is a lot more I will put in the
record. I would note that I have worked with Senator Feinstein,
the Chair of the Select Committee on Intelligence, to remove an
unnecessary FOIA exemption from the intelligence
reauthorization bill. Senator Cornyn and I have also
reintroduced the OPEN FOIA Act.
I want to yield to Senator Cornyn, and I will ask that my
full statement be made part of the record.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Chairman Leahy. Senator Cornyn.
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Well, thank you, Mr. Chairman, and I want
to thank all the witnesses for being here today for this
important hearing. I am sad because my responsibilities down
the hall at the Finance Committee with health care reform are
going to take me away from here, so I will not be able to
participate fully. But please know that is not for lack of
interest. I am absolutely committed to the cause of open
Government and freedom of information. And I am hoping, Mr.
Chairman, that you and I can continue to work together as
partners to advance this cause in the future as we have been
fortunate to do in the past.
I know sometimes people get the impression that in
Washington nothing gets done on a bipartisan basis. But that is
just not true, and I think the work that the Chairman and I
have done in this area is a good example of that. And I would
note, since our friend Senator Whitehouse is here, that I was
proud to cosponsor with him the Justice Reinvestment Act
legislation.
So I think hope springs eternal for bipartisan cooperation.
Even though we may fight like cats and dogs on some issues,
when we find common cause, we can do some very good things.
The OPEN Government Act of 2007 was an attempt to restore
meaningful deadlines with real consequences to the freedom of
information system and, thus, to ensure that Government
agencies will provide timely responses to requests. Our bill
created a new system for tracking pending requests and an
ombudsman to review agency compliance.
My experience, Mr. Chairman, when I was Attorney General of
Texas and had responsibility for enforcing the Open Meetings
and Open Records Act, was that a lot of time people did not
know how to navigate Government when they wanted information,
and so the ombudsman function served as a good way to avoid
litigation, to avoid misunderstandings, and just get to the
heart of the matter and find out what people are asking for and
get them what they want without delay and without hassle. I am
glad we are going to be able to do that at the Federal level.
Today's hearing provides the opportunity to examine whether
the key provisions of the OPEN Government Act are being
properly implemented and how effective they are. I hope our
witnesses will offer suggestions for further improvements to
the Freedom of Information Act and enforcement to build on the
reforms that we have already passed. I am sure you have some
ideas.
Finally, I would like to speak directly to our first panel
of witnesses, Mr. Perrelli and Ms. Nisbet, who appear today on
behalf of the Federal Government. As I noted, the OPEN
Government Act was the latest attempt to improve the
Government's response time to citizens' requests for
information and the thoroughness of those responses. But
tightening deadlines and imposing consequences can only take us
so far.
My view is that what is most critical is a change in the
ethic and the culture of the Federal Government when it comes
to our citizens and their requests for information, which is
not the Government's. It is theirs. Citizens requesting
information should be treated as valued customers, not as
adversaries, and certainly not as a nuisance. They should be
engaged and assisted and not avoided. And that is why, again, I
hope the ombudsman function will help in that regard.
Ms. Nisbet, the Office of Government Information Services
was created in part to change that ethic and to change the
culture and to transform every corner of the Federal
bureaucracy. This is a tall order, but one that I believe you
are well suited to lead. I stand ready to work with you to help
bring this critical change of attitude, ethic, and culture
about.
And, Mr. Chairman, thank you again for continuing our
partnership. I look forward to more good work in the interests
of open Government, transparency, and accountability. Thank
you.
Chairman Leahy. Thank you very much.
Our first witness is Thomas J. Perrelli who currently
serves as the Associate Attorney General at the U.S. Department
of Justice. Before that, he was the managing partner of the
Washington, D.C., office of Jenner and Block.
Incidentally, while Senator Cornyn is leaving, I would note
that half of our Committee is back in Finance doing health
care.
When Mr. Perrelli was at Jenner and Block, he co-chaired
the firm's new media and entertainment practices. Prior
Government experience includes service as counsel to former
Attorney General Janet Reno, Deputy Assistant Attorney General
in the Civil Division during the Clinton administration; a
graduate of Brown University and Harvard Law School.
Mr. Perrelli, glad to have you here, sir.
STATEMENT OF THOMAS J. PERRELLI, ASSOCIATE ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Perrelli. Thank you, Mr. Chairman. Good morning.
As you indicated, my name is Tom Perrelli. I am the
Associate Attorney General and also the chief FOIA officer for
the Department of Justice. I would first like to thank the
Chairman, the Ranking Member, and the rest of the Committee for
bringing attention to the important issue of our implementation
of the Freedom of Information Act. I know it has been a long-
time issue on which you have focused, Mr. Chairman, and your
leadership has really been to the benefit of the country. And I
appreciate also the leadership of Senator Cornyn on this issue.
As you know, President Obama has pledged to make his the
most open and transparent administration in history. The
administration's efforts started on his first full day in
office, when he issued important memoranda that called on his
agencies to initiate a new era of open Government. The premise
is simple. Openness will strengthen our democracy and promote
efficiency and effectiveness in Government.
Since that time, Federal agencies across the Government
have been working to promote openness in a variety of ways, but
we at the Department of Justice take particular responsibility
for implementing the President's directive with respect to
FOIA. I have described a number of initiatives in my written
testimony, and I would be pleased to talk about those further,
but at least I would like to highlight three.
First and foremost is Attorney General Holder's March 19
memo to the heads of all Federal agencies. Those guidelines
advise agencies that we are taking a new approach to the
disclosure of information and trying to implement, I think,
really as Senator Cornyn suggested, a new culture in
approaching the FOIA.
In addition to strongly encouraging agencies to make
discretionary releases of records, the Attorney General has
made clear that records should not be held simply because a
FOIA exemption may apply, to prevent embarrassment, or because
of speculative or abstract fears. Rather, the Attorney General
has made clear that the Department of Justice will defend a
denial of a FOIA request only if the agency reasonably foresees
that disclosure would harm an interest protected by one of the
statutory exemptions, or the disclosure is prohibited by law.
And we and our agency partners are implementing those
guidelines every day.
The second thing I will point to briefly is the latest
edition of our Department of Justice Guide to FOIA, published
this year in sunshine yellow, and that is a lot of FOIA for
those who can see the size of the book. It is an indispensable
resource and really the definitive manual on FOIA. And that is
used by Federal agencies across the country and in the
requester community. And having been both a requester and
within Government, the FOIA manual has always been of critical
help.
Finally, I am also pleased to announce this morning that
the Department is issuing updated guidance to the chief FOIA
officers. Under the FOIA, the Attorney General is to direct
agency chief FOIA officers to report on their agencies'
performance under the FOIA. This morning we are issuing
guidance that will continue our efforts to promote openness in
Government. The new guidance goes beyond the legal requirements
of the OPEN Government Act and requires each agency to talk
about the steps being taken at their agency to apply the
presumption of disclosure as well as to track several different
measures related to processing backlogs, reliance on certain
statutes for Exemption 3, as well as their efforts to implement
new technologies. We think that reporting will help encourage
agencies to improve their administration of FOIA.
Finally, I should note that we at the Department of Justice
are particularly pleased to be testifying with Miriam Nisbet,
welcoming the Office of Government Information Services--OGIS--
to the Federal FOIA family, and we are looking forward to
working with OGIS and to benefiting the citizens who seek
information about how their Government works.
Thank you, Mr. Chairman, and I would be pleased to answer
any questions that you or other members have.
[The prepared statement of Mr. Perrelli appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Mr. Perrelli.
Before we go to the questions, in my longer statement in
the record, I mentioned Ms. Nisbet and how happy I am she is
here. She currently serves as the newly appointed Director of
the Office of Government Information Services, or OGIS, at the
National Archives and Records Administration, an office I have
pushed very hard to get established, and I cannot think of
anybody better to serve there as head of it. Before she assumed
this post, she served as the Director of the Information
Society Division for the United Nations Educational,
Scientific, and Cultural Organization--we know it as UNESCO--in
Paris. Her extensive information policy experience includes
previous work as a legislative counsel for the American Library
Association, Deputy Director of the Office of Information
Policy for the Department of Justice. She earned her bachelor's
degree and her law degree from the University of North
Carolina.
Bievenue. Go ahead.
STATEMENT OF MIRIAM NISBET, DIRECTOR, OFFICE OF GOVERNMENT
INFORMATION SERVICES, NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION, COLLEGE PARK, MARYLAND
Ms. Nisbet. Merci. I am pleased to appear before you today.
This Committee was instrumental in establishing the Office of
Government Information Services through the Open Government Act
of 2007, which amended the Freedom of Information Act. Thank
you in particular, Mr. Chairman, and thanks to Mr. Cornyn, for
your vision and your perseverance in making this new office one
of the levers for reinvigorating our country's FOIA.
The concept of the public's right to access to the records
of its Government is fundamental to our democracy. Mr.
Chairman, you have articulated that beautifully in your opening
statement. Yet making our Freedom of Information Act work
smoothly and efficiently to accommodate that concept has proved
more difficult and costly than we could have imagined. This
Committee has continued to make improvements in the law over
several decades--delicately balancing the various legal
concerns for protection of certain information and the need for
disclosure, as well as addressing practical aspects such as
fees and the time limits for responses to requests by agencies
for records, and most recently, by establishing the Office of
Government Information Services, or OGIS.
With funding received for the first time this fiscal year,
the National Archives and Records Administration acted quickly
early in the year to get the office started. Funding is also
contained in the fiscal year 2010 President's budget.
I am feeling a little lonely right now. I arrived at the
Archives a few weeks ago, and I have been interviewing
vigorously to hire five other staff members. But soon we will
be a dedicated team building a straightforward and simple
interface between the public and the executive branch agencies,
offering alternative dispute resolution through mediation, and
helping to make the FOIA work better for all involved in the
process.
How will we accomplish this? Our mission is twofold. One
part involves review of agency compliance and performance with
the FOIA. We will, of course, work closely with the Department
of Justice, which has a major and well-established role in this
regard, and with the chief FOIA officers at the agencies. One
immediate and feasible task is to take advantage of available
technology to view and assess the existing agency annual FOIA
reports, similar to what is being done to assess Federal
agencies' information technology initiatives through the IT
Dashboard and data.gov.
A second part of the mission is to offer mediation services
to resolve disputes between persons making FOIA requests and
agencies who receive them as a non-exclusive and non-binding
alternative to litigation. We will pursue several routes:
We will use existing Federal mediation resources to help us
provide this service, something that has not been done before
under FOIA except on an ad hoc basis in litigation as ordered
by the courts.
We will work with existing agency FOIA Public Liaisons in
our review and in developing our mediation capacities.
We will create an online dispute resolution system, called
ODR, which is a relatively new approach to conflict resolution
and which holds great potential to efficiently process and
prioritize a high volume of cases.
Many people, and this Committee, including this morning,
have been referring to the new office as the ``FOIA
Ombudsman.'' We view our role in that regard as mediator--
assuming, of course, that a FOIA requester has not already
decided to go to court--and as a source of information, which
we will provide in person as well as through many resources on
the Web. Many agencies as well as nongovernmental organizations
offer useful guides, templates, and good practices on FOIA, and
we will promote and take advantage of these existing resources.
Public understanding of how Government records are
organized and maintained is not strong, nor should it be
required to submit a FOIA request. But that lack of
understanding can result in requests that are overly broad or
which lack the specificity to allow the agency to readily
search for the records. Similarly, the volume of requests--the
Government receives over 600,000 FOIA requests per year--the
sensitivity of the records, and the need to consult with other
affected agencies all significantly impact the ability of
agency FOIA officers to respond in a timely manner. You know
this well. The combination of these pressures can result in
misunderstandings. Clearing up those misunderstandings and
seeking solutions in more complicated cases, short of
litigation, would save time and money for agencies and the
public alike, as well as bolster confidence in the openness of
Government.
In just a short time, I have received helpful advice and
support from this Committee, the White House Open Government
Initiative and the Chief Technology Officer, the Department of
Justice, the National Mediation Board, innovators in the
private sector, State Ombudsman offices, and members of the
FOIA requester community. With all of these stakeholders
assisting in the new office's outreach, we will be able to
realize the vision of this Committee to achieve the timely and
fair resolution of America's FOIA requests.
Thank you, Mr. Chairman, for the opportunity to testify. I
would be happy to answer any questions.
[The prepared statement of Ms. Nisbet appears as a
submission for the record.]
Chairman Leahy. Thank you for being here, and I am going
to--I have a number of questions I want to ask. I am going to
turn it over for a few minutes to Senator Whitehouse while I
respond to another call from another branch of our Government,
and then I will come back here.
I was surprised. You know, I was very pleased in March when
the Attorney General issued new FOIA guidance that we restore
the presumption of openness in our Government, and I told the
Attorney General that. Now, what are some of the specific steps
that we are taking? For example, I would ask how many times has
the Department released additional information in a pending
FOIA case since the new guidelines went into effort.
Mr. Perrelli. I do not think I have precise numbers, but I
will say that we have taken a number of steps. Within a few
days after the guidelines were released, we began training
other agencies as well as Department of Justice personnel on
the new guidelines. We have held large conferences to train and
to begin the process, again, as Senator Cornyn said, of a
cultural change. And the way we put it to our own personnel, as
well as to agencies, is that their focus should be not on
identifying the reason why something could not be disclosed,
not on identifying a reason why something could be withheld,
but on identifying those records that could be disclosed to the
public. That has been a major cultural change.
I think we have seen a number of examples within the
Department of Justice and outside the Department of records
released, and we have begun a long-term process of releasing
OLC opinions. Our Executive Office of Immigration Reserve has
now released the bench book, the reference book that is sitting
on every immigration judge's desk.
Chairman Leahy. But you have a--and you know that all the
other departments are going to look and say, well, what is the
Justice Department doing, because they are sending out these
guidelines. And you have a number of pending FOIA cases
currently in the Department of Justice where people have not
been able to get their FOIA requests answered.
What are you doing on those? Is it case by case? Is it
blanket? What do you do so that people are not hit with ``Do as
I say, not as I do'' ?
Mr. Perrelli. Certainly, that is true, and we want to make
certain that in those cases the Attorney General's guidelines
are being applied. So we are--working with the litigating
lawyers in those cases as well as reaching out to the agencies.
And in a significant number of cases, I think we have been able
to do some reprocessing and to release additional records.
I know the head of the Civil Division has designated a
senior official there who is reviewing all of the cases, and
they have many of the high-profile FOIA cases. They are going
one by one through those cases and identifying areas where
additional records can be released.
I myself have met with the civil chiefs of the U.S.
Attorneys' Offices to emphasize the need to do that in their
cases as they go forward. And I know our Office of Information
Policy has reached out both to the agencies as well as to
litigating lawyers to do exactly that.
So I think the agencies are seeing that we at the Justice
Department are implementing it and are ensuring that they are
doing it in cases where that is appropriate.
Chairman Leahy. Could you have somebody let me know how
many cases are pending?
Mr. Perrelli. Certainly, we can get you those numbers.
Chairman Leahy. Thank you. And how many agencies currently
have chief FOIA officers and FOIA public liaisons in place?
Mr. Perrelli. I think 92 of 95 of the agencies have chief
FOIA officers that have been designated, and we have been in
contact with the three that do not. Those three have interim
individuals who have been characterized as ``points of
contact,'' and we have told them they need to actually
designate individuals.
Chairman Leahy. What about posting information online? Are
they doing that? And is that cutting back on the FOIA backlogs?
Mr. Perrelli. I think it is too early to tell, but we
certainly are encouraging agencies to do exactly that because
we think that will have an impact on backlogs. And we are
directing agencies to identify records that they should
regularly be able to release in the hopes that people will be
able to find the records that they are looking for and not need
to file a FOIA request or maybe a more limited one.
Chairman Leahy. We find that--some depending upon who can
lobby the most, trying to slip different legislative exemptions
in. I mentioned one that we were able to keep out, working with
the Intelligence Committee. If they all come before this
Committee, there are going to be very few exemptions made. We
all understand the need on security. You do not file a FOIA to
find out who is acting at this moment in troubled parts of the
world with our CIA, but we have all seen some of these in the
past: ``Well, we cannot tell you that because it is highly
classified.'' And you have something where it is all blanked
out. You may have seen the same thing, all of it, in the
newspapers weeks before. I once told the Director of the CIA,
William Casey, when he came up about the third time in 2 weeks
to the Congress to say, ``I know I was supposed to have told
you about'' whatever the issue was, ``and now that it has been
in the press, I want to tell you more about it.'' And I told
him, ``Send this to the New York Times marked Top Secret.'' We
get three advantages. We get the information we want sooner
than he would ever give it to us. Second, we got it in greater
and more accurate detail. And, third, we got that wonderful
crossword puzzle.
[Laughter.]
Chairman Leahy. He was not as amused as the audience here
was. But I only let people know about these statutory
exemptions on the one hand. Also, on the other hand, how do we
keep from adding more of them in there?
Mr. Perrelli. Right. This is an issue of real concern to us
because when there are efforts to put an exemption in statute
in an unclear way, it is difficult for the public, for
legislators, and, frankly, for agencies as they try to
implement FOIA. So we have a real interest in making sure that
it is transparent that an exemption is being proposed and being
discussed so a decision can be made on that.
In terms of exemptions already in place, we require all the
agencies to identify when they are relying on a particular
statutory exemption. We actually publish on our website which
statutes are being used as exemptions, so that can be
transparent for all to see, and in their annual reports each
agency has to identify if it is relying on a particular statute
as a basis for an Exemption 3 withholding.
Chairman Leahy. I have exceeded my time. I am going to turn
it over to Senator Klobuchar, but then I am going to come back.
I want to talk about state secrets. Thank you.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
you, both of you, for being here.
Mr. Perrelli, I wanted to talk about the President's FOIA
memorandum from January 21st. Could you elaborate a little more
about what it means to require agencies to have a presumption
of openness and to take affirmative steps to make information
public? How much of that is already required by FOIA? And how
much of the President's memo goes above and beyond the law?
Mr. Perrelli. Well, the message that the Department of
Justice used to send was that if you can find a basis for
withholding information, we will support you and defend that.
The President's memorandum changes this really from a
presumption that if you can find a basis it will be withheld to
a presumption that information will be disclosed unless a
particular harm can be identified. And that is, as I said, a
significant cultural shift that makes an enormous difference.
It also encourages agencies to go beyond that, regardless of
whether they get a FOIA request, and identify information that
they routinely create and maintain that can be made public. And
we have seen many agencies go out of their way with the new
presumption to identify those records and put them up on the
Web or disseminate them in some other fashion. And like I said,
we work with agencies every day to help them think through this
and identify those kinds of records.
Senator Klobuchar. Now, I know from having managed 400
employees when I was county attorney that culture shifts are
not always that easy. I remember I once moved furniture around
in our lobby, and within 20 minutes there were 18 negative
comments about the new arrangement.
And so I am just wondering how it has been working with the
agencies. What has been the most challenging thing as they have
gone to implement these new changes?
Mr. Perrelli. I think the key to all of this is training,
training, training, as well as getting broad-based support
within each agency. In Attorney General Holder's guidance to
agencies, one of the things he emphasized was that FOIA is
everyone's responsibility--an effort really to empower the
chief FOIA officers of each of the agencies to identify issues
and problems and raise resource issues or concerns about not
having enough people, with backlogs, so that we can actually do
this more effectively and efficiently.
As Ms. Nisbet mentioned, there are obviously an enormous
number of FOIAs submitted to the Government each year, and
trying to keep up with that flow remains a significant
challenge.
Senator Klobuchar. How about the issue of the--you drafted
a new policy regarding partial disclosures, which seems to make
sense to me, that even if a full disclosure of a document is
not possible, you could do a partial disclosure. Have there
been challenges with that?
Mr. Perrelli. I wouldn't say there have been challenges
with that, but I think we are still working to make sure that
as individuals are looking at particular documents--and, again,
this is all about training--that their focus should be on,
``are there pieces of this document that can be released, even
if there are pieces in this record that may not be able to be
released? '' And we very much encourage agencies to go through
that process on a document-by-document basis. I think we are
starting to see the results of that training and trying to
inculcate these ideas, and I think we are making progress every
day.
Senator Klobuchar. And one of the provisions of the OPEN
Government Act was a requirement that agencies assign tracking
numbers to FOIA requests if they would take longer than 10 days
to fulfill, and I am sure that got at some of the backlogs and
what was going on and established ways for requesters to track
the status of their request. Has this been fully implemented
yet?
Mr. Perrelli. I think this has been broadly implemented. I
am hesitant to say ``fully implemented.'' But I think it has
been an important development just in the customer service
aspect of the FOIA, so that people can track these things. The
other piece of this puzzle in working with agencies, is that we
have seen a wide disparity in technological ability with
different agencies. We are working with them, across agencies,
on best practices to try to encourage more of them to move to
electronic processing, which I think over time is going to be
extraordinarily helpful.
Senator Klobuchar. Yes, I would think you would want it
more standardized. It would be easier to do that.
Mr. Perrelli. We continue to work on it.
Senator Klobuchar. Ms. Nisbet, I know you are brand new at
your job, but do you want to add anything to this, especially
about the standardization, trying to get things working across
agencies?
Ms. Nisbet. Well, certainly I think this administration is
very much dedicated to looking for innovative ways to use
technology. Even older ways of using technology would be
welcomed at some of the agencies.
[Laughter.]
Senator Klobuchar. As opposed to no way of using----
Ms. Nisbet. Yes, as opposed to no way. I think you see the
whole range, and it is very much a challenge. It is technology,
it is resources to support that technology.
Our office will certainly be looking for ways to use
technology to make our resources known and our presence known,
and working with the FOIA officers to find the best practices,
where it is working, good examples, and sharing those resources
so that different agencies are not having to start from scratch
to develop their own but, rather, can borrow.
Senator Klobuchar. Thank you, and I do appreciate your
efforts here. My State has always had a very broad FOIA law and
has allowed a lot of information to be shared. And I was
actually quite surprised when I came to Washington and some of
the--for instance, in the climate change area, when we were
trying to get some of the findings with the previous
administration, and the Senators had to view them in a little
room by ourselves and could not write anything down. I was,
like, ``Where is this coming from? ''
So I am very glad that you have embarked on this new
policy. Thank you very much.
Ms. Nisbet. Thank you.
Chairman Leahy. Thank you, Senator Klobuchar.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Ms. Nisbet, I understand there are FOIA requests that have
been outstanding for 17 years, and that Government agencies
have requests that have been outstanding for 10 to 15 years.
How are those going?
[Laughter.]
Senator Franken. And what will your office do about those?
Ms. Nisbet. I am afraid that what you have heard is not a
rumor, from what I understand. What we will be doing
immediately, as soon as we can really have somebody to answer
the phone and deal with those kinds of issues, is use our
efforts to mediate where there are stubborn cases. We will be
working, of course, with agencies and with FOIA requesters to
identify particularly difficult problems and try and get those
backlogs over with.
Senator Franken. Well, what is the role--how are you going
to mediate these things? Can you be more specific about that?
Let us say when there is not just a misunderstanding but the
person making the request and the person denying the request
are just at loggerheads, how do you do that? How does that
work? What is the role of the mediator?
Ms. Nisbet. The role of a mediator--and mediators are used
in all kinds of fields, not only domestic disputes and
financial disputes, but have been used in FOIA cases as well.
The technique is really a matter of having a trained mediator
sit down with the parties separately and together to see where
the issues are and start trying to find ways to find a common
ground and a solution.
It is often very difficult. I will give you an example of
one case in which I myself participated when I was in the
counsel's office of the National Archives in the 1990's. One of
the very, very stubborn cases in litigation that I am sure that
you have heard of, that is pretty well known, was litigation
over the White House tapes of former President Nixon, a very
intractable case that went on for many, many years. But with
the help of a mediator, the parties--the Justice Department,
the National Archives, the custodian of the records, and the
estate of President Nixon--were able to work through some of
those very difficult issues and eventually come up with a plan
for getting much more information released to the public. And
that was a very difficult case, but mediation was very much the
key there.
Senator Franken. Just curiously, what was so difficult
about that? Why couldn't the President tape himself? What was
so difficult about the mediation exactly? In other words, it
seems to me that would be a pretty clear case where that would
be a public record?
Ms. Nisbet. Well, the Nixon White House tapes were quite
unique in that--I would love to invite you over to the National
Archives, and we could perhaps talk a little bit about it and
maybe show you when you can listen to some of those records.
But, you know, that was the situation in which Congress acted
for the first time to take records of a President and make them
the Government's records and not the personal records of the
President.
So it led to quite a bit of litigation, going to the
Supreme Court over the ownership, over the legality, the
constitutionality of the law that was passed to take the tapes,
and then eventually over the release of them. And President
Nixon continued to retain an interest under law in the release
of the tapes. So everything had to be negotiated. A very
interesting case, but we are still seeing today releases of
those records for the first time.
Senator Franken. Thank you very much.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator Franken.
One thing I did not have a chance to ask before, Mr.
Perrelli, was on the state secrets privilege. Last week, we
learned the administration is going to start a new policy on
state secrets beginning I guess tomorrow. The Attorney
General's new policy has several parts actually taken from the
State Secrets Protection Act, which I have introduced along
with several members of this Committee. I think that does show
new openness, but I want to make sure that the decision whether
to invoke state secrets or not has real judicial review. And if
you do not have legislation to make it permanent, the next
administration could easily change it.
We are all familiar with the use of state secrets, but as I
review some of the cases we have seen around this country, I
think it has been overused. It is one thing to use the question
of state secrets if indeed the security of the country is at
stake. It is another thing to use it when it is ``let us cover
up our mistakes'' kind of usage.
Are the courts going to have the ability to review the
evidence the Government uses if it wants to justify the
privilege of state secrets?
Mr. Perrelli. Well, Mr. Chairman, the policy that the
Attorney General is implementing as of tomorrow is an important
step here in protecting classified information, as well as
ensuring that it only is invoked in a manner that we think is
legally defensible.
As you indicated, the plan has a number of steps.
Invocation of the privilege will be reviewed by a Department
committee. The decision will be made by the Attorney General.
It will not be asserted by the United States in a situation
where you are trying to cover up embarrassment or a mistake.
And we anticipate that the courts will review those
determinations as they do today.
Chairman Leahy. Well, because I might say if it is used all
the time, then it might as well as be used none of the time,
because it is going to lose any credibility. I do want the
ability of courts to review, and that is why I will keep
pushing on the State Secrets Act that we have pending right now
before the Committee, not just for this administration but for
future administrations to have some guidelines.
I might say, Ms. Nisbet, you know, Senator Cornyn and I
have worked very hard to have your office. I hope you will keep
us posted here on those things that are going right, but also
let us know the things that are going wrong. We want to know
what is working in the office, but also if you find things that
you do not think are working or that the law creates problems
for you, let us know. We do not kill the messenger up here--
actually, we do now and then, but----
[Laughter.]
Ms. Nisbet. You will make an exception in my case.
Chairman Leahy. We kill reluctant messengers. We do not do
that to people who are willing to tell us.
We will take a 3-minute recess while we change around the
table, and then we will go to the next panel.
Ms. Nisbet. Thank you.
Mr. Perrelli. Thank you, Mr. Chairman.
[Recess 10:52 a.m. to 10:56 a.m.]
Chairman Leahy. If we could reconvene, please. We have two
witnesses here: Tom Curley, who was named the President and
Chief Executive Officer of the Associated Press in June of
2003. That is impossible. That is 6 years. Since assuming the
position, Mr. Curley has worked to deepen AP's longstanding
commitment to the people's right to know. He is one of the
country's most outspoken advocates for open government and has
testified before this Committee. He holds a political science
degree from Philadelphia's La Salle University and a master's
degree in business administration from Rochester Institute of
Technology.
And the other witness will be Meredith Fuchs. She is
General Counsel for the National Security Archive at George
Washington University. In that capacity, she oversees Freedom
of Information Act and anti-secrecy litigation, advocates for
open Government, lectures on open Government, a former law
partner in the Washington, D.C., office of Wiley Rein LLP; a
bachelor's degree from the London School of Economics in
political science; received her J.D., cum laude from the New
York University Law School.
Mr. Curley, we will begin with you, and then go right to
Ms. Fuchs.
STATEMENT OF TOM CURLEY, PRESIDENT AND CHIEF EXECUTIVE OFFICER,
THE ASSOCIATED PRESS, REPRESENTING THE SUNSHINE IN GOVERNMENT
INITIATIVE, NEW YORK, NEW YORK
Mr. Curley. Mr. Chairman, thank you for this invitation and
your continuing commitment to safeguarding our liberties
through open Government.
Mr. Chairman, your work is not done. The secrecy reflex at
too many agencies remains firmly in place. FOIA still contains
relatively weak penalties for those who do not meet their
disclosure obligations.
I would like to make four points.
First, we in the news media still find Federal agencies
unresponsive to the declarations from the White House that
Government must become more open. We truly appreciate the
change in policy direction, but the change has not reached the
street. A stronger FOIA is still the public's best defense
against harmful Government secrecy. Unfortunately, the effort
to conceal is greatest where public interest is highest.
Second, the Office of Government Information Services
eventually can be extremely valuable to FOIA requesters as an
adviser and sometimes as a mediator of disputes. But OGIS is
tackling enormous challenges with very modest resources, and we
urge the Committee to continue its close monitoring and support
of the new office as it finds its footing.
Third, FOIA's privacy exemption may need the Committee's
attention. Courts in some important cases appear to be ignoring
the intent of Congress when a past FOIA that is public records
containing personal information qualify for the exemption only
when that information is highly personal, private, and
sensitive. Some judges are satisfied with a mere showing that a
person is mentioned by name in a document. Then they compound
the error by refusing to recognize any public interest in
disclosure unless the requester knows in advance that they are
likely to contain evidence of Government misconduct. That is
not the proper balancing of interest that FOIA is supposed to
require. It is wrong. It is causing problems. And we think it
may take changes in the language of FOIA Section 6(b) or b(6)
and b(7) to fix it.
The fourth and final point is that the so-called b(3)
amendments to the legislation are severely undermining FOIA's
ability to preserve the public's access to Government
activities and information. As you know, b(3)s are provisions
embedded in other laws that put certain very specific kinds of
information beyond FOIA's reach. They often are inserted with
no discussion, and they now constitute a very large black hole
in our open public records law.
The Sunshine in Government Initiative found about 250 b(3)s
on the books, and about 140 of those show up in agency denial
letters every year. In many cases, these special exemptions
protect information already covered under one or more of the
other exemptions in FOIA Section b. In other cases, they are
creating whole new categories of information not subject to
disclosure.
But the real problem with these exemptions is that writing
them into statute forecloses any chance of an impartial
determination that a valid reason applies to all the
information that has been effectively roped off. Whether or not
one of the general FOIA exemptions should cover a particular
information request is subject to court review. But a statutory
exemption for very specific information is not.
The FAA, for example, has a b(3) exemption that lets it
withhold information voluntarily submitted to aviation
regulators regarding the safety and security of air travel. You
may remember that this is the exemption the FAA was planning to
use as the basis for holding information the agency collected
about airports where birds in flight paths are crippling or
even bringing down airliners.
Also secret are the identities of watermelon growers, the
identities of people who handle honey, and the ingredients in
cigarettes. B(3) exemptions hide the private sector advice that
Government trade representatives and Congressional committees
use to shape trade policy and also the studies that chemical
plants conduct to determine the impact of any worst-case
accident on neighboring communities and the environment.
There may be valid arguments for putting a secrecy label on
some of this information, but the real concern is that whatever
argument exists have not been challenged or even discussed in
any public forum, and the b(3) exemptions mean a disappointed
FOIA requester will find it nearly impossible to challenge them
in the courts.
Nobody knows exactly how many of these exemptions there
are, but AP reporters encounter them on a routine basis. We
regarded the OPEN FOIA Act, which you, Chairman Leahy, and
Senator Cornyn introduced earlier this year, as a much needed
first step toward reining in this alarming trend. Your proposed
statute would make it possible for anyone who is watching for
b(3) exemptions in proposed legislation to spot them easily.
I hope you can keep the OPEN FOIA Act on track toward
passage, and I hope Congress will then build on it with some
additional steps such as automatic sunsetting of b(3)s and
special scrutiny of b(3) exemptions, including a White House-
OMB review process before these exemptions can be submitted by
Federal agencies.
Chairman Leahy, thank you very much.
[The prepared statement of Mr. Curley appears as a
submission for the record.]
Chairman Leahy. Thank you. I am going to get back to
questions in a moment, but you are not willing to concede that
it is vital for national security to keep the identity of
watermelon growers secret? I mean, what kind of patriot are
you?
[Laughter.]
Mr. Curley. Well, it did make for a great story.
Chairman Leahy. I do remember very well the flights and
birds. I mean, I just went right through the ceiling. As
someone who flies virtually every week--well, anyway, we will
get back to that in a moment.
I should say, for anybody who wants to yank that part of
the record out of context, I was joking on the question of your
patriotism. You almost have to do that these days.
Ms. Fuchs, go ahead, please.
STATEMENT OF MEREDITH FUCHS, GENERAL COUNSEL, THE NATIONAL
SECURITY ARCHIVE, WASHINGTON, D.C.
Ms. Fuchs. Thank you, Mr. Chairman. I am delighted to talk
to you today about the Freedom of Information Act.
The outlook is quite different today than it was in March
2007, when I last appeared before this Committee. Thanks to the
efforts of this Committee, and particularly your own efforts
and Senator Cornyn's efforts, the OPEN Government Act of 2007
was enacted into law. Thank you for that and, in addition, the
sustained interest this Committee has shown in the
administration of FOIA has had an impact across Government, so
thank you again for that. And I hope you continue regular
oversight in this area.
As you know, the OPEN Government Act of 2007 amended FOIA
in numerous ways. In my written testimony, I have included some
details about specific provisions, but today I want to talk
about two particular issues under the OPEN Government Act. One
is we are delighted with the appointment of Ms. Nisbet as the
first Director of the Office of Government Information
Services. The National Archive and Records Administration was
very open during the process of developing startup plans for
OGIS, and Ms. Nisbet has so far shown the same openness to hear
the input of the requester community as she sets up her office.
We urge this Committee to continue to use its efforts to ensure
that OGIS is on firm financial footing and that the Federal
Government FOIA community participates in OGIS' mediation
activities in good faith.
Second, with respect to the OPEN Government Act, I want to
touch on the state of FOIA backlogs. I can see that Senator
Franken at least read my testimony, which pointed out that as
of the end of fiscal year 2008 there were still quite old
backlogs in FOIA requests. The OPEN Government Act----
Chairman Leahy. I would note that Senator Franken is one of
the hardest-working Senators I have met in a long, long time.
Ms. Fuchs. That is great. Well, I think that the reason he
asked that question is because it is quite shocking to imagine
that there are still FOIA requests that are 17 years old.
The OPEN Government Act has changed the reporting
requirements under the FOIA, and the reason it was necessary
for it to do that was because the prior annual agency FOIA
reports did not provide an accurate picture of the State of
FOIA. Under prior law, agencies only collected what information
the law required. They did not design systems to help them with
tracking or managing their FOIA requests. In fact, some
agencies did not even have any tracking system, which is a
reason that you all added tracking requirements to the OPEN
Government Act.
The new law should change things. Unfortunately, because
many agencies have such antiquated systems, I do not feel that
the annual reports filed for fiscal year 2008 are fully
illustrative of the State of FOIA. Sadly, they did show that
agencies have requests as old as 17 years, 15 years, 10 years,
and the like. We are going to look hard at the annual reports
that will be developed in the next couple of months for fiscal
year 2009, and I urge this Committee to do so as well.
Then I would like to turn a bit to talk about the Obama
administration. As you know, President Obama on his first full
day in office issued a series of memoranda and executive orders
on open Government issues. One of these was a FOIA memorandum.
I reread that memo this morning, and I am struck by the vision
of openness and accountability it espouses. It says, ``All
agencies should adopt a presumption in favor of disclosure in
order to renew their commitment to the principles embodied in
FOIA and to usher in a new era of open Government.'' Soon after
this memorandum, as you know, Mr. Holder issued a FOIA
memorandum, and the Department of Justice also soon issued
detailed guidelines for agencies.
So in preparation for today, I pondered whether we have
entered a new era of open Government which the President asked
for. Most of the people I have spoken to are happy with the
overarching principles that this administration has
articulated, but they worry about the implementation.
One area in particular that people are concerned about is
whether the new standards have been applied to FOIA cases
currently in litigation at the time the policies were issued.
I myself have a case in which we asked the Department of
Justice if it wished to re-review certain records, and the
Department declined. I heard similar stories from other
litigators, and I have seen court records saying that same
thing.
But I also know of several cases where the Department of
Justice has released additional records. Some of these were
very high profile cases, and there were many factors other than
the FOIA policies that were influential, such as the
interrogation memoranda and the IG report from the CIA on
interrogation. But there are other less well known cases. And
we have also seen that in response to regular FOIA requests,
agencies are processing more.
Mr. Perrelli suggested that the new standards have been
applied in all instances, and with respect to that, I suggest
this Committee ask the Department to report on the results of
its litigation review and to report whether it has refused to
defend FOIA cases under the new standard.
I would finally like to quickly address two additional
issues about implementation. I have a list of recommendations
in my testimony that I hope will be considered, but I would
like to----
Chairman Leahy. All of which will be part of the record.
Ms. Fuchs. Thank you. The first is that we hope that the
Office of Management and Budget and the Department of Justice
will renew their Committee to E-FOIA implementation and help us
move from an affirmative disclosure model where FOIA requests
are limited to the most difficult cases.
Second, we would like to see the administration agree to
treat the White House Office of Administration as an agency for
the purposes of the FOIA. We have been involved in litigation
about preservation of White House e-mails, and the Office of
Administration is the central office responsible for that.
I do not have much time to talk about future threats to
FOIA. I will note that yesterday a copy of a draft executive
order on classification was leaked, and it has some very good
innovations; it has some backward steps in it as well. If this
hearing was broader than FOIA, I would have plenty to say about
that. But the question is: Have we entered a new era of
Government?
I guess my conclusion is that the door is open and we can
see the light, and I am hopeful that the Obama administration
will walk right out into the sunshine and fully implement the
principles that the President articulated on January 21st.
Thank you.
[The prepared statement of Ms. Fuchs appears as a
submission for the record.]
Chairman Leahy. Do you think it is too early to tell
whether the guidelines are going to work?
Ms. Fuchs. I think that the guidelines are having an
impact, but I think it is too early to tell because, you know,
the agencies have not fully implemented them, and we do not
know how a range of FOIA requests are going to be handled.
There have been high-profile releases, but there have been
high-profile withholdings as well.
Chairman Leahy. And that long backlog that Senator Franken
referred to is still there.
Ms. Fuchs. I believe it is still there.
Chairman Leahy. Some of it will just disappear because the
requesters will give up, which is a very--that bothers me. And
tell me if I am correct in being worried about that, that if
that becomes the norm, does that not encourage departments to
keep things hidden?
Ms. Fuchs. I think you are exactly right, Mr. Leahy. Some
of the annual reports from agencies demonstrate that requesters
have simply walked away because they actually--some of them
report numbers of cases closed because the requester lost
interest.
Hopefully, if agencies could get their backlog to something
more reasonable, people would not be walking away.
Chairman Leahy. I want to follow up on that with Mr.
Curley, because we have the ombudsman provision in the OPEN
Government Act that I discussed with Director Nisbet. Now, in
2005, a member of the Sunshine in Government Initiative
testified before the Committee. I want to make sure I have got
this right. He said, ``Nearly one-third of FOIA requests were
denied in 2004.'' And so the only thing they could do is pursue
litigation, which could not only take a long, long time, but it
would be very costly.
Now, if your association or any major news-gathering
organization had one specific thing of some significance, you
might be willing to undertake that litigation. But I am
thinking that on the routine things, the person who does not
have any resources should not have to have costly litigation.
The OPEN Government Act establishes an agency ombudsman. Do you
think that the FOIA ombudsman as an alternative to litigation
might help?
Mr. Curley. Senator, absolutely. Obviously, we are in the
opening weeks, but I think the provision was both prescient and
in time it may turn out to be precious--prescient because the
industry is under such dire financial conditions right now that
having a non-legal, if you will, a non-court approach might be
very helpful in getting some expedited attention to these
requests.
In time, that may prove to be a very good way, but there
are a lot of priorities that have to be set, a lot of details
that have to be gone through. And, again, I come back to the
agencies that are most in the public interest in terms of
Defense, Homeland Security, Justice, Treasury are most
unwilling to give up their secrets right now. So it is going to
take a while to sort through these procedures.
Chairman Leahy. And in this regard, I have a philosophical
concern. I begin with the idea that we Americans have a right
to know what our Government is doing. More importantly, we have
a right to know when our Government screws up and makes
mistakes.
What I have seen especially since 9/11, it is a lot easier
to say I will just close the door on that, that is secret, we
cannot know about it. We have seen in the Archives where
material that has been there, open, available to anybody for
years, is suddenly taken off and is not available because it is
considered top secret. We have seen things that have been on
Government websites for months, maybe a year, and taken off.
Now, part of this is an unnecessary paranoia. Some part of
it is in some areas perhaps because there is a security
concern, and I think that we all respect that. But part of it,
I think, is a very easy way of saying I do not want you poking
around whether I screwed up. It is that last part that really
bothers me.
Now, as you mentioned, tell me a little a little bit about
the watermelon growers and the beekeepers. I mean, this is
somewhat absurd, and I am sure that is why you mentioned it.
Mr. Curley. It is really just things that have been slipped
into legislation over the years. Deals are made in provisions
in laws at midnight or 1 a.m. and it gets in. And right now, as
you know, there is no provision to call and attempt to put
something in a b(3) provision into the record or have any
discussion about it. So routinely these things are being done
now, and whole areas of information are being kept from the
people.
We also find the upstream requests under b(5). Agencies are
calling a lot of the discussions pre-decisional so they do not
have to release it there.
So there are a number of areas here where people are just
holding back. It should be fun to know why we cannot find out
about the honey growers or the watermelon people, and it has
been impossible to figure it out. But this is just an absurd
example of something that is happening routinely, at least we
figure out, about 140 times a year in Washington.
Chairman Leahy. I have a very real concern about that. I
make the argument that this Committee has jurisdiction over
that and we should be discussing it. I mentioned when they
tried to put something into the intelligence authorization, we
were able to pull back on it. But we have a President who seems
deeply committed to FOIA. I know my discussions with him when
he was in the Senate and my discussions with him since he
became President tell me that.
My touchstone still is how do we keep this going, not only
for this administration but the next administration. I mean,
there will be other people in your chair, both of you,
testifying. There will be somebody else here as Chairman. I do
not want the next person to have a less commitment to it. How
do we make sure that we have got it right in the law? How do we
keep the pressure up?
Mr. Curley. Well, I think your efforts here have been
extraordinary, and I think we are going to suggest that we do
need further amendments in the law to have these things
institutionalized. Certainly, directionally the music is sweet
that we are hearing, but turning the ship of state in a
bureaucracy as vast as this one, as you well know, is not going
to happen in 9 months--and maybe even 9 years. And so how does
that happen?
From a management standpoint, there are some things that
can be done, and we have heard the Associate Attorney General
tell us about those. My colleague on the panel, Meredith, has
some very good suggestions as well. But ultimately a tougher
law closing some of the loopholes will be required.
Chairman Leahy. I have always found in Government that
inertia is a lot easier than initiative, and we will work for
initiative.
Do you want to add anything further to this, Ms. Fuchs?
Ms. Fuchs. Well, I would simply add that, you know, the
OPEN Government Act was enacted into law in 2007, and very few
agencies have taken its provisions and implemented regulations
that incorporate those provisions. And I think that that is one
thing that will help solidify some of the gains of the law,
and, you know, ideally they would also in the regulations add
the presumption of disclosure that has been articulated by the
President.
But other than that, I would agree with Mr. Curley.
Constant oversight by this Committee, new laws or closing
loopholes in the laws, those will be important. And I think it
is great that this administration has such a different vision
because if the next administration, whatever it will be and
whenever it will be, reverses, again you will see a reaction
from the open Government community.
Chairman Leahy. Thank you very much.
Mr. Curley. Thank you.
Ms. Fuchs. Thank you.
Chairman Leahy. We will stand in recess.
[Whereupon, at 11:19 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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